ARTICLE 6

There are very important differences between the Labour Relations Act, 28 of 1956 (the so-called old LRA) and the Labour Relations Act, 66 of 1995, as amended (the so-called new LRA) which came into operation on 11 November 1996.

Consequently, it is often found that practitioners still adopt the approach founded on the old LRA and not the new LRA when dealing with, amongst others, unfair dismissals, unfair labour practices, the role of collective agreements and the applicability of employment policies, practices and procedures.

This article sets out the eight major differences between the old LRA and the new LRA and an appreciation of these differences will, amongst other things, lead to the realisation that, in terms of the old LRA, a dismissal on the grounds of disciplinary action would have been regarded as fair if it took place in substantial compliance with the terms and conditions of any agreement relevant to such dismissal, but, in terms of the new LRA, the said compliance with such agreement is simply not a defence.

THE DIFFERENCES BETWEEN THE LABOUR RELATIONS ACT, 28 OF 1956, AND THE LABOUR RELATIONS ACT, 66 OF 1995, WHICH CAME INTO OPERATION ON 11 NOVEMBER 1996

The 1956 Act contained an unfair labour practice definition that was very wide and entailed that any act or omission which in an unfair manner infringed or impaired the labour relations between an employer and an employee amounted to same. On the other hand, the 1995 Act contains a very limited and narrow definition of an unfair labour practice, as set out in s186(2) and, in essence, only covers the following aspects:

(a) promotion, demotion, probation, training and benefits;

(b) unfair suspension or unfair disciplinary action short of dismissal;

(c) the failure to reinstate or re-employ; and

(d) occupational detriment other than a dismissal in terms of the Protected Disclosures Act, 26 of 2000.

third difference

In terms of the 1956 Act, a dismissal on the grounds of disciplinary action would be regarded as fair if it took place in substantial compliance with the terms and conditions of any agreement relevant to the dismissal. On the other hand, in terms of the 1995 Act, the compliance with such an agreement is not a defence.[1]

fourth difference

In terms of the 1956 Act, if termination of employment takes place during the first six months of an employee’s employment (or during such period as may have been agreed between the parties), the dismissal would be regarded as fair if it is in accordance with any applicable agreement, wage regulating measure or contract of service. On the other hand, in terms of the 1995 Act, such compliance is not a defence.

fifth difference

In terms of the 1956 Act, if the termination of employment of an employee, on grounds other than disciplinary action, took place, such dismissal would be regarded as fair if prior notice of such termination or employment took place in accordance with any applicable agreement, wage regulating measure or contract of service. On the other hand, compliance with the aforesaid is not a defence in terms of the 1995 Act.[2]

sixth difference

In terms of the 1956 Act, where an employer terminated employment on grounds other than disciplinary action, and such termination took place in compliance with an agreement or contract of service regulating the terms of employment of the employee whose services had been terminated, such dismissal would be regarded as fair. On the other hand, in terms of the 1995 Act, such compliance is not a defence.[3]

seventh difference

In terms of the 1956 Act, the failure or refusal by an employer, employee, trade union or employer’s organisation to comply with an agreement constituted an unfair labour practice. On the other hand, in terms of the 1995 Act, only the unfair conduct of an employer constitutes an unfair labour practice.

eighth difference

In terms of the 1956 Act, the interpretation and application of disputes regarding any applicable agreement, collective or otherwise, including wage regulating measures or contracts of employment, were dealt with in terms of the ‘unfair labour practice’ regime. On the other hand, in terms of the 1995 Act, a distinction is made between collective agreements as defined in the Act and non-collective agreements, so to speak, and employment contracts, seeing that:

(a) the interpretation and application of disputes regarding collective agreements are, in essence, resolved in terms of s24 of the LRA; and

(b) the interpretation, application and breaches of agreements and employment contracts are, in essence, dealt with in terms of s77(3) of the BCEA.

[1] In terms of the 1995 Act, dismissals for misconduct are dealt with in terms of, inter alia, s188(1)(a)(i), s188(1)(b) and Schedule 8 (items 1 to 5 and 7), as well as s188(2)

[2] In terms of the 1995 Act, dismissals for incapacity are dealt with in terms of s188(1)(a)(i), s188(1)(b) and Schedule 8 (items 8 to 11), as well as s188(2)

[3] In terms of the 1995 Act, dismissals for operational requirements are dealt with in terms of s188(1)(a)(ii), s188(1)(b), s189, s189A, the Code of Good Practice Regulating Operational Requirements and Schedule 8 (item 6)